where orders emerge

Justice and the Rule of Law

If confirmed, Ms. Kagan may hear a constitutional challenge to the mandatory insurance requirement of the new health-care law.

A nonconsequentialist judge would examine whether the Constitution empowers the federal government to require citizens to purchase a private good (health insurance) and make a ruling on that basis alone.

But a consequentialist judge would look beyond the law and consider the insurance mandate’s impact on society. Using this criterion, the consequentialist judge might see the mandate as a “benefit to public health” and a “compelling state interest.” Such thinking would lead to a loose interpretation of the Commerce Clause and an affirmation of an unprecedented loss of personal liberty in America.